Jarrett A. Williams of Covington & Burling LLP on “The Duty to Defend Implicit Claims”
In an article appearing in the March/April issue of Coverage, entitled “The Duty to Defend Implicit Claims,” Jarrett A. Williams of Covington & Burling LLP first notes that the duty to defend generally requires a liability insurer to defend any lawsuit that could result in entry of a judgment against the insured that would be covered by the insurance policy. A typical duty to defend provision in an insurance policy triggers that duty even if the claim is groundless, false or fraudulent, as long as the claim would be covered if the plaintiff prevailed.
Under modern notice pleading rules, a complaint can set forth a claim for relief that creates the risk of a judgment that would be covered by the insurance policy even if that claim is merely implicit in the complaint’s allegations. In the article, the author argues that these “implicit claims” trigger an insurer’s duty to defend to the same extent as explicit claims.
Implicit claims are allegations that the plaintiff does not expressly label as claims but which nevertheless set forth a claim or claims that entitle the plaintiff to relief. An implicit claim can be established by combining allegations appearing anywhere in the complaint. It can also constitute what the author calls a “lesser –included claim,” e.g., an explicit allegation of an intentional tort can conceal an implicit claim for the unintentional version of the same tort. Mr. Williams maintains: “Just as there is no distinction between explicit claims and implicit claims when determining whether a complaint states a claim entitling the plaintiff to relief, there should be no distinction between explicit and implicit claims when determining whether a complaint triggers the duty to defend.”